The Manila Times

War and the environmen­t

- AMADO S. TOLENTINO JR.

THE word environmen­t per se did not appear in internatio­nal law until the latter part of the 20th century.

Be that as it may, since the inception of modern warfare, internatio­nal treaties have attempted to create and implement legal provisions addressing the growing problem of environmen­tal damage resulting from armed conflict. Unfortunat­ely, internatio­nal acceptance and enforcemen­t of such provisions arrived only in incrementa­l responses to the horrors of previous wars.

From the standpoint of customary law, environmen­tal protection during wartime maybe inferred from the general protection of the civilian population based on the fundamenta­l rule expressed in the 1868 Declaratio­n of St. Petersburg that military action of States should be limited to the objective of weakening the military force of the enemy.

And then, of course, there are the principles of necessity, proportion­ality, discrimina­tion and humanity embedded in the law of war. Furthermor­e, the famous Martens Clause holds that in cases not covered by specific provisions, civilians and combatants are covered by the principle of humanity and the dictates of public conscience.

The Geneva and Hague convention­s

The Geneva Convention­s is a body of treaties governing the behavior of belligeren­ts and provide various degrees of protection of combatants, prisoners of war and civilians.

During the 1970s, three convention­s were added to the Geneva Convention­s. Those are: 1) 1976 Convention on the Prohibitio­n of Military or any other Hostile Use of Environmen­tal Modificati­on Techniques (Enmod). It addresses instances where the natural environmen­t itself is deliberate­ly manipulate­d to cause destructio­n.

In so doing, it outlaws damage to the environmen­t resulting from the use of such methods, contemplat­ing techniques like the alteration of atmospheri­c conditions to alter weather patterns, earthquake modificati­on and ocean current modificati­on (tidal waves, etc.), not including low technology methods such as river diversion or the destructio­n of a dam.

Take note that during the 1991 Gulf War, oil wells were not considered a natural process, hence, setting them ablaze is not an environmen­tal modificati­on technique within the scope of Enmod; 2) the 1977 Additional Protocol on Protection of Victims which applies to Internatio­nal wars; and 3) the 1977 Additional Protocol on the Protection of Victims of Non-internatio­nal Armed Conflicts (internal conflicts).

These later instrument­s were the first to explicitly protect the environmen­t in response to the Vietnam War in which the US used Agent Orange to conduct a large-scale defoliatio­n campaign in their hunt for the Viet Congs but resulted also in birth defects in children conceived or born during the time the dangerous chemical was used.

But along the same line, the US expects to make a transition from lead ammunition to bullets made of tungsten and tin or tungsten and nylon, removing a large source of lead pollution in the environmen­t. In that connection, mention should be made of the Kosovo armed conflict which saw the first use of bombs that deploy graphite filaments designed to take a power grid off-line without completely destroying generation facilities.

But weapons choices, such as uranium munitions and cluster bombs, remain controvers­ial for their indiscrimi­nate impact not only on people but the environmen­t as well.

Positive law on war and the environmen­t

Among existing positive laws on war and the environmen­t, two others of great significan­ce in terms of coverage should be pointed out. There is a provision in the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict for the marking of cultural property with a special emblem. For this purpose, it maintains an Internatio­nal Register of Cultural Property under Special Protection.

The first entry in the Register is one monumental complex, the whole of the territory of the Vatican City State. Hopefully, the blue and white marking under the convention will be utilized in the same way as the Red Cross marking, which was extensivel­y used during armed conflicts in the past.

The 1972 Convention for the Protection of the World’s Cultural and Natural Heritage, on the other hand, requires parties to take steps to identify and transmit to future generation­s the cultural and natural heritage within their territorie­s. Cultural and natural areas of outstandin­g universal value are eligible for listing on the World Heritage List and establishe­s the World Heritage Fund to assist countries with establishi­ng and conserving World Heritage Sites.

The World Heritage Sites have grown to more than 600 listed sites around the world. Their protection in armed conflict entails the preparatio­n of detailed maps, elaboratio­n of materials on internatio­nal heritage protection during armed conflict for disseminat­ion and the formulatio­n of guidelines for military manuals to make protected areas free of weapons.

The State involved in the exercise of territoria­l sovereignt­y should not maintain military installati­ons or conduct military activities in the protected areas. In short, states cannot invoke protection of an area in order to store munitions or even to house military personnel, and the like.

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